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Thursday, May 5, 2011

There Was No Conflict of Interest in California Gay-Marriage Case

Last week, opponents of same-sex marriage filed a desperate, bigoted recusal motion alleging that Judge Vaughn Walker, who overturned California's gay-marriage ban, should have been forbidden from hearing the case on the grounds that his sexual orientation constituted a conflict of interest.

The claim is bogus. It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.”

Our justice system relies on trusting members of the nation’s diverse bench to put aside their personal characteristics and abide by their duty of even-handedness. Any other approach would invite foolish and unacceptable results — female judges being kept from hearing rape or sexual discrimination cases, or black judges from hearing cases involving racial bias or civil rights.

Vacating a judgment, however, is an extraordinary remedy, and courts have in many instances declined to throw out a judgment even after concluding that a judge should have disqualified himself. It is not called for here. The California-based federal appeals court is already reviewing this decision — and it should uphold it.

These editorials are both correct that there is no conflict of interest in this case. However, our legal system does provide a procedure to review Judge Walker's decision not to recuse himself.

The same cannot be said for those decisions made by justices of the Supreme Court, who are their own final arbiters on matters of recusal. If a case before the Court could create a conflict of interest for one of the justices, he or she makes the decision whether or not to recuse, without being required to disclose his or her reasoning, and the parties in the case have no recourse for appealing that decision.

It is only right that we expect the justices of the Supreme Court to be subject to the same ethical standards to which we hold Judge Walker and every other federal judge.